Massachusetts law about gender identity or expression

Table of Contents

Table of Contents

Best bets

Gender identity guidance, MCAD, December 2016
Written "to educate the public about discrimination based on gender identity, to describe what evidence may be submitted to support a claim of gender identity discrimination, to inform individuals of their rights, and to assist employers, providers of housing, mortgage services, and owners, managers and agents of places of public accommodation in understanding their obligations under Massachusetts law."

Gender identity guidance for public accommodations, Mass. Attorney General, September 2016.
Written to "help businesses and other places of public accommodation comply with the law," this document "provides definitions and general information, ... provides specific information regarding the use of ... restrooms and locker rooms," and provides guidance on what to do if you think someone is "asserting gender identity for an improper purpose."

Massachusetts laws

A health care provider shall not advertise for or engage in sexual orientation and gender identity change efforts with a patient less than 18 years of age

MGL c.46 § 13(e) Amending a birth certificate
A person who has completed medical intervention for the purpose of permanent sex reassignment may have their birth record amended. As of July 1, 2015, surgery is no longer a prerequisite to getting a new birth certificate.

MGL c.127, § 32A Housing and treatment of inmates with gender identity that differs from assigned sex at birth

MGL c.127, § 39A(c) The fact that a prisoner is lesbian, gay, bisexual, transgender, queer or intersex or has a gender identity or expression or sexual orientation uncommon in general population shall not be grounds for placement in restrictive housing.

MGL c.272, § 98 Discrimination in admission to, or treatment in, place of public accommodation.

St.2011, c.199 An Act Relative to Gender Identity. Amends a number of laws to prohibit discrimination based on gender identity.

St.2016, c.134 An Act Relative to Transgender Anti-Discrimination.
Gives transgender people the right to use restrooms or locker rooms consistent with their gender identities, and includes language to provide "legal action [against] any person whose assertion of a gender identity is for an improper purpose."

St.2018, c.69, § 218 Establishes a special commission to study the health and safety of lesbian, gay, bisexual, transgender, queer, and intersex prisoners in correctional institutions, jails and houses of correction to evaluate current access to appropriate healthcare services and health outcomes.

Boston, Human rights, chapter XII, s.12-9
Includes in its protections, "Gender identity or expression shall mean and include a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with a person's sex at birth."

"Dear colleague letter," US Dept. of Justice and Dept. of Education, February 22, 2017.
Rescinds requirement for public schools to allow students to use bathrooms appropriate for their gender identity.

Trump v. Karnoski and Trump v. Stockman, 586 U.S. __ (1/22/19)
In these unsigned orders, by a vote of 5-4, the Supreme Court granted the government's request to begin enforcing a ban on transgender military personnel, while legal appeals of the policy continue.

Selected cases

Doe v. Mass. Dept. of Correction, US Dist Ct. Mass, CIVIL ACTION NO. 17-12255-RGS (2018)
"Jane Doe is a 53-year old transgender woman serving a three- to four-year sentence at MCI-Norfolk for a nonviolent drug offense. ...Although Doe’s GD diagnosis is not disputed, the DOC has housed Doe at MCI-Norfolk, a men’s prison, since October 31, 2016." After a detailed discussion of the treatment of Gender Dysphoria in the ADA, and constitutional issues, the Court denied the Dept. of Correction's motion to dismiss. "As may be apparent from this decision, the court is of the view that Doe may very well prevail on her ADA and Equal Protection claims. "

Doe v. Yunits et al, 15 Mass. Law Rptr. 278 (2001)
A student with gender identity disorder is not excluded from the definition of "qualified handicapped individual" under the Article CXIV of the Declaration of Rights of the Massachusetts Constitution. Further, requiring Doe to dress in boy's clothing may be considered "a constructive expulsion [if Doe] could not comply with these conditions without endangering her mental health."

Jette v. Honey Farms Mini Market, 23 MDLR 229 (2001)
"Discrimination against transsexuals because of their transsexuality is discrimination based on 'sex' within the meaning of M.G.L. c. 151B," and transsexuality is not "excluded from the definition of 'disability' as a matter of law."

Kosilek v. Spencer, 774 F.3d. 63 (2014)
Under the 8th Amendment, the DOC's choice of a particular medical treatment--which included hormone therapy, facial and body hair removal, and the prisoner's ability to have access, and to dress in, feminine attire and make-up--was not constitutionally inadequate, and the district court improperly issued an injunction requiring provision of an alternative treatment--surgery--which would have given rise to new concerns related to safety and prison security.

Lie v. Sky Publishing Corp., 15 Mass. Law Rptr. 412 (2002)
Outlines the difference between transsexual, transgender, and other terms. The plaintiff, a transgender female, established a prima facie case of sex discrimination under MGL c.151B, and discrimination on the basis of handicap.

Millet and MCAD v. Lutco, Inc., 23 MDLR 231 (2001)
While ""transsexuality" is not a "sexual orientation" as that term is defined by M.G.L. c. 151B § 3(6), "We instead hold that "sex" discrimination, as prohibited by chapter 151B, includes a prohibition against discrimination against transsexual individuals."

Rosa v. Park West Bank & Trust, 214 F.3d 213 (2000)
In this First Circuit case, a man who was denied a loan application because he was dressed in women's clothing had established a prima facie case of sex discrimination under the Equal Credit Opportunity Act.

ID documents center, National Center for Transgender Equality.
"Find out how to get a legal name change where you live and update your name/gender on state and federal IDs and records." Easy to use site provides information for all 50 states plus federal.

Nondiscrimination on the basis of gender identity: guidelines for Massachusetts public schools, Mass. Dept. of Education. "This guidance is intended to help school and district administrators take steps to create a culture in which transgender and gender nonconforming students feel safe, supported, and fully included, and to meet each school's obligation to provide equal educational opportunities for all students, in compliance with G.L. c. 76, §5 and the state regulations."

"The (mis)categorization of sex in Anglo-American cases of transsexual marriage," by John Parsi. 108 Mich. L. Rev.1497 (2009-2010).
The "lack of national uniformity [in changing birth certificates] makes post-operative transsexuals' recognition of their acquired sex complicated at best and impossible at worst."

"Sexual and gender variation in American public law: from malignant to benign to productive," by William N. Eskridge, Jr. 57 UCLA L. Rev. 1333 (2009-2010).